The issue of reforming the state structure after the Gen-G rebellion is currently at the peak of debate. In the same context, changes are also needed in the judiciary, the most decisive organ within the state structure and the guardian of the constitution and the rule of law. This article will analyze the various dimensions of the reforms that need to be made in the justice system after the Gen-G rebellion.

The judiciary has a major role in keeping civil liberties, fundamental rights, human rights, and democratic values ​​and norms alive. In principle, in accordance with the principle of separation of powers, the judiciary contributes to strengthening and consolidating democracy through the exercise of judicial power in accordance with the constitution and law. However, the exercise of judicial power is not an absolute matter. The judiciary must be independent, competent, and impartial.

In addition, the operational aspect of justice administration must also be prompt, accessible, economical, effective, and accountable to the people. However, contrary to constitutional norms, the performance of our country's judiciary is shocking. Public trust in the judiciary is declining. There is no need to submit any list for this.

It is well known that the 'Report of the Committee Formed to Study the Distortions, Inconsistencies, and Corruption of the Judiciary, 2078' led by the respected former Chief Justice of the Supreme Court, Harikrishna Karki, has exposed the fact that corruption has become institutionalized within the judiciary. The report highlighted the pervasive political influence in the judiciary and showed that there were problems at the policy, legal, structural and operational levels.

Amendment to the Constitution 

The constitution contains some seriously flawed provisions, which seem to have created a legal basis that does not allow the judiciary to be independent. The flawed provision of the Judicial Council in Article 153 of the constitution is the seed of the problem. The Judicial Council, formed under the chairmanship of the Chief Justice to recommend matters related to the appointment, transfer, disciplinary action, dismissal and administration of justice, has a provision that the majority of members should be from political backgrounds, while judges are in the minority. Therefore, recommendations for the appointment of judges are made on the basis of party affiliation and sentiment.

In some cases, incompetent and immature judges have been selected on the basis of nepotism, favoritism and protectionism. The Council should be restructured into a body with a majority of judges with a ‘judicial mind’ by making necessary amendments to the constitution regarding the Judicial Council. A system for appointing judges should be established based on merit and ability, not political access and affiliation. In addition, it is equally important to make the judiciary inclusive and reflect national diversity.

Article 284 of the Constitution of Nepal has made provision for a Constitutional Council to recommend the appointment of the Chief Justice and officials of constitutional bodies. The Chief Justice has been appointed as an ex-officio member of the Constitutional Council, which is chaired by the Prime Minister. Due to this provision, there are many examples of the Chief Justice also becoming a 'stakeholder' in political appointments.

This provision has increased the executive's fascination with the judiciary. This provision should be corrected to increase the distance between the Chief Justice and the executive. The provision regarding parliamentary hearings in the appointment of Supreme Court judges is also contrary to the norms of our parliamentary practice. The forcible introduction of a parliamentary hearing system, which is relevant only in a presidential system, into our system has led to undeclared legislative control over judges. Therefore, this contradictory system, which was intentionally kept with the corrupt intention of keeping judges under executive influence, should also be abolished.

Recent unpleasant developments have also shown the need for reform in the appointment process and role of the Attorney General, which is directly linked to the judiciary. According to the constitution, the Attorney General is appointed at the will of the Prime Minister. The Attorney General has to make the final decision on prosecution in the administration of criminal justice and also play the dual role of legal advisor to the Prime Minister. Due to this, the effects of political beliefs on the working style of the Attorney General have repeatedly come to the surface.

The ‘dimb case’ in which Attorney General Savita Bhandari became controversial is a continuation of that. The Attorney General has been making subjective decisions on whether to prosecute a case or not due to his personal, party and other interests. To eliminate this practice, the political and judicial roles should be given to two different institutions by creating an Attorney General and a Prosecutor General. This can curb the existing tradition of politicizing criminal cases.

Improvement in practice 

The flawed provisions of the constitution are not the only reason for the failure of the judiciary, the judiciary has also deteriorated due to court practice. Delay and inaction are rampant in the judiciary. A large part of one's life has to be spent in the court process due to a single case. The right of the consumer of justice to get speedy justice has been violated by 'bypassing' the belief that 'delayed justice is equal to no justice'. As a result, the service recipients have to face harassment. The court has not been able to become an institution of the people.

Since the state's judicial system is expensive, the majority of the population has not been able to access justice. Due to the open trading of justice, some poor and innocent people have ended up in jail, while criminals have been rewarded by the judiciary with the power of money and power. Inappropriate arrangements such as not having to pay money to go to jail have been practiced. Therefore, it is necessary to ensure that competent representation is available in the courts.

Court fees and fees payable to legal practitioners should be made according to the financial status of the consumers of justice. The system of providing free legal aid to the poor and helpless as per Article 20(10) of the Constitution of Nepal should be fully and effectively implemented throughout the country. The Nepal Bar Association, a professional organization of legal practitioners, should also encourage the practice of pro bono.

The independence of the judiciary is not possible through the efforts of the judiciary alone. The judiciary needs the support of the state to establish a competent, strong and trustworthy judicial system. Therefore, Nepal should also follow the international practice of allocating at least one percent of the national budget to the justice sector. Judicial manpower and infrastructure should also be adequate. A 'Judicial Pay Commission' should be formed to provide proper salaries to judges and employees working in the judiciary. The government should actively facilitate the implementation of judgments.